YAKUB SUKRULLA BAIG Vs. MOHAMED NAHANE MOGUL

JUDGEMENT

(1.) THIS Revision Application is directed against the order dated July 18, 1991 passed by the learned Civil Judge, Junior Division, Panvel on Exhibit 43 in R.C.S.No.153 of 1985. The suit was filed by the Petitioner/Plaintiff mainly against the Defendant No.1 for possession of the suit property. While the Petitioner/Plaintiff was in witness box, he attempted to prove a document which is stated to be a rent note executed between him and Defendant No.1. In that attempt, he made the following statements. " There was a rent note executed in between me and the Defendant. I have produced the same on record. Rent note shown to me is the same. Defendant No.1 put his signatures in my presence. Also it bears signatures of attesting witnesses by name Khandave and Shaikh Dawal Khan. On 16-9-1978 rent note is executed and on that day signatures had been made on the same. They put their signatures in my presence."

(2.) AFTER the Petitioner made above said statements in his chief examination, he gave an application stating that the document in question i.e. rent note Exhibit 22/N.P. be marked as exhibit as he has deposed about the execution of that rent note by Defendant No.1.

(3.) THE view of the learned Judge is manifestly erroneous for firstly a rent note is not a document which has to be compulsorily attested, and therefore, it would not attract the provisions of section 68 of the Indian Evidence Act. It is only if the document is required by law to be attested that it shall not be used as evidence unless one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. Whereas certain other types of documents viz. a Will or a Gift Deed, etc. require compulsory attestation, a lease deed, even if it is in writing, it is not compulsorily required to be attested. THErefore, for proving a lease deed, it is not absolutely necessary that an attesting witness should be examined. Even if a lease deed is attested by the witnesses for proving the same, the examination of attesting witnesses is not a mandatory requirement.